Kristufek v. Hussmann Foodservice Co., Toastmaster Div.

• Decision Date: 29 April 1993
• Docket Number: Nos. 91-3487,91-3552,s. 91-3487
• Citation: 985 F.2d 364
• Parties: 61 Fair Empl.Prac.Cas. (BNA) 72, 60 Empl. Prac. Dec. P 42,041, 61 USLW 2531 Arthur N. KRISTUFEK, Plaintiff-Appellant, and Mary McPherson, Plaintiff/Cross-Appellee, v. HUSSMANN FOODSERVICE COMPANY, TOASTMASTER DIVISION, Defendant-Appellee/Cross-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 364

985 F.2d 364

61 Fair Empl.Prac.Cas. (BNA) 72, 60 Empl.

Prac. Dec. P 42,041,

61 USLW 2531

Arthur N. KRISTUFEK, Plaintiff-Appellant and Mary McPherson, Plaintiff/Cross-Appellee, v. HUSSMANN FOODSERVICE COMPANY, TOASTMASTER DIVISION Defendant-Appellee/Cross-Appellant.

Nos. 91-3487, 91-3552.

United States Court of Appeals Seventh Circuit.

Argued June 5, 1992.

Decided Feb. 10, 1993.

Rehearing and Rehearing In Banc

Denied April 29, 1993.

William T. Coleman (argued), Susan M. Langlotz, Edward J. Whalen, Hedberg, Tobin, Flaherty & Whalen, Chicago, IL, for Mary McPherson and Arthur N. Kristufek.

Michael G. Cleveland (argued), Janet M. Hedrick, Vedder, Price, Kaufman & Kammholz, Chicago, IL, for Hussmann Foodservice Co., Toastmaster Div.

Before COFFEY and FLAUM, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.

HARLINGTON WOOD, Jr., Senior Circuit Judge.

The two plaintiffs, Arthur N. Kristufek and Mary McPherson, former employees of defendant Hussmann Foodservice Company, Toastmaster Division, ("Hussmann") in a three-count complaint filed in June 1987 charged defendant with violations under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"). Kristufek charged in Count I he was terminated because of his age, and in Count II he alleges he was terminated in retaliation for his efforts in opposing the discharge of McPherson for reasons of her age. In Count III McPherson alleges she was discharged for her age.

Hussmann filed a motion to dismiss Count II on the basis that Kristufek's retaliation claim was barred by his failure to raise it with the Equal Employment Opportunity Commission ("EEOC"). The district court denied the motion because Kristufek did file an EEOC charge of age discrimination and the retaliation claim was considered "like or reasonably related to" his age discrimination claim.

In a jury trial on November 3, 1989 the jury found against Kristufek on Count I, but for him on Count II returning a verdict in the amount of $111,145.00, and for McPherson on Count III returning a verdict of $28,721.00. Because the jury found willfulness, the verdicts for back pay were doubled pursuant to 29 U.S.C. § 626(b). On that same date judgment was entered in behalf of Kristufek for $222,296.00 and in behalf of McPherson for $57,442.00.

Following entry of the judgment, the district court, sua sponte, extended the time for filing post-trial motions until February 2, 1990. Within that time Hussmann filed its post-trial motions and plaintiffs filed their petitions for attorney fees. On October 3, 1991 the district court denied one Hussmann motion and sustained the judgment as to McPherson, but granted Hussmann's motion as to Kristufek and set aside the verdict because Kristufek had falsified his employment application.

Thus, the first issue Kristufek raises is the jurisdiction of the district court to entertain post-trial motions filed more than ten days after the entry of judgment. Rules 50 and 59 of the Federal Rules of Civil Procedure when read in conjunction with Rule 6(b) prohibit an enlargement of time. The district judge later assumed full responsibility for the unauthorized extension under the rules, and considered he had jurisdiction of the motions because he had inadvertently misled counsel. ¹ We need not resolve jurisdiction on that basis as the original judgment entered on November 3, 1989 was not final.

The district court during trial had reserved to itself one of the principal issues to be decided as a matter of law. That issue was whether or not Kristufek should be denied recovery because he had falsified his resume used in obtaining his employment with Hussmann. In its trial brief and at other times during trial, Hussmann had raised that falsification as a bar to recovery. The district court on several occasions plainly reserved that issue to itself. (Tr. at 96-97, 103, October 10, 1989; Tr. at 308, November 1, 1989; Tr. at 495, November 2, 1989). That issue reservation apparently went unnoticed by all parties and was not resolved until the district court subsequently allowed Hussmann's post-trial motion on October 3, 1991 which again raised that issue. It was an important issue, and one considered decisive by the district court. It is axiomatic that the case must be over with no remaining issues, except for attorney fees and expenses, before the judgment becomes final and appealable. Principal Mut. Life Ins. Co. v. Cincinnati TV 64 Ltd. Partnership, 845 F.2d 674, 676 (7th Cir.1988). Thus the time for filing post-trial motions had not begun to run when what appeared to be a final judgment, but was not, was entered on November 3, 1989. The post-trial motions were therefore timely and when ruled on concluded the case. The notices of appeal to this court were likewise timely. The separate appeals have been consolidated. The merits of the issues are therefore before us.

Factual Background

McPherson who had been hired by the company in 1946 as a typist was fifty-nine years old when terminated on June 20, 1986 for cause Hussmann claimed, but because of her age she claimed, and the jury agreed with her. At the time of termination she had risen to become executive secretary to David Mosteller who had joined Hussmann in 1984 as its president. Kristufek was hired in 1981 by Hussmann as Director of Employee and Community Relations. In his employment interview Kristufek stated he had a Bachelor of Science degree in business administration received from Drake University, Des Moines, Iowa, in 1954, and further that he had taken graduate courses at Northwestern University. Those education claims, apparently never verified by Hussmann, were totally false. Their falsity was not discovered by Hussmann until November 17, 1987 during the course of depositions in this case when Kristufek admitted the falsity. The truth was Kristufek had attended Drake University for about a year, but did not graduate, and had taken courses at Northwestern University, but not graduate level courses. When terminated on August 15, 1986 Kristufek was fifty-seven years of age. Hussmann claimed that Kristufek was terminated as a result of a department reorganization to reduce costs, the principal feature of which was that Kristufek's job was abolished. It was not claimed by Hussmann that Kristufek was fired for cause. Kristufek claimed before the EEOC that he was discharged for age, but in his complaint in this case he added the claim that his discharge was in retaliation for his support of McPherson in an effort to prevent her discharge. The jury resolved this latter issue in his favor. McPherson's successful claim of age discrimination and Kristufek's successful claim of retaliatory discharge are factually related as we shall see.

Mosteller, after he joined the company as its president, was not satisfied with McPherson's job performance although she had received merit increases during her entire employment. In his view she was timid and diffident, too slow, and required excessive supervision. When the work pressure mounted, McPherson became flustered. She resisted using word processing equipment. Further, she did not set up meetings and luncheons for Mosteller as requested, but delegated that responsibility to another secretary. Mosteller, the only one to give McPherson a poor rating, advised her of these perceived shortcomings, but her work did not improve. She was warned of possible termination, but her work only deteriorated under the pressure, and she was subsequently terminated. McPherson was not offered the chance as a senior employee to transfer to another company job. Mosteller's attitude was clear as he commented "he didn't want to see her face in the company any more."

On that record, viewed from Hussmann's perspective, there may have been adequate reasons for McPherson's discharge unrelated to age discrimination. Kristufek's testimony, however, added a new dimension which apparently persuaded the jury that the real reason for the discharge of McPherson was in fact her age, and that Kristufek's discharge was not due to the claimed reorganization, but was in retaliation for Kristufek's support of McPherson prior to her discharge. ²

Part of Kristufek's job as personnel manager was to consult with the company president about personnel matters. Kristufek's testimony chronicled the discussions he had with Mosteller in behalf of McPherson prior to her discharge. Kristufek claimed on several occasions to have advised Mosteller that to fire McPherson under the circumstances would violate the Age Discrimination Act. On one of those occasions Mosteller reacted by slamming his pencil down and saying he did not want to hear anything about "bureaucratic paperwork talk." Mosteller is quoted as telling Kristufek that "I'm telling you what I want done and I want it done. This is a priority assignment." What he wanted done was to fire McPherson and replace her with a young secretary. Kristufek testified that later he again advised Mosteller that they would be violating the Age Discrimination Act, and that McPherson would have a good case. There appears to have been no inquiry by Mosteller about the possible application of the Act, which he dismissed as the work of government bureaucrats to keep a company from making money, to McPherson. He fired McPherson on June 20, 1986 and assigned Kristufek the job of finding as her replacement a "sharp" or "young" secretary.

Kristufek collected many resumes of replacement candidates for consideration by Mosteller. Mosteller would dismiss some prospects who had been in the workplace for a long time with a "no" or would inquire when the prospect had gotten out of school. Kristufek asked why the prospects he had offered were unacceptable. Mosteller's answer was that they were all women in their forties or fifties. In one instance Kristufek suggested a prospect who held a Master's degree from the University of Michigan. Mosteller asked what she looked like and...